Skip to comments.How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees
Posted on 06/22/2003 7:21:23 AM PDT by yoe
Roger Pilon is vice president for legal affairs at the Cato Institute. He holds Cato's B. Kenneth Simon Chair in Constitutional Studies and is the director of Cato's Center for Constitutional Studies.
The 2000 presidential election was widely understood to be a battle for the courts. When George W. Bush finally won, following the Supreme Court's split decision in Bush v. Gore, many Democratic activists simply dug in their heels, vowing to frustrate Bush's efforts to fill vacancies on the federal courts. After Democrats took control of the Senate in May of 2001, they began calling explicitly for ideological litmus tests for judicial nominees. And they started a confirmation stall, especially for circuit court nominees, that continues to this day. Thus, 8 of Bush's first 11 circuit court nominees went for over a year without even a hearing before the Senate Judiciary Committee, and most have still not come before the committee.
As the backlog of nominees grows, Democrats are quite explicit about the politics of the matter: their aim is to keep "highly credentialed, conservative ideologues" from the bench. The rationales they offer contend that judges today are, and perhaps should be, "setting national policy." One such "policy" they abhor is "the Supreme Court's recent 54 decisions that constrain congressional power." Thus the importance, they say, of placing "sympathetic judges" on the bench, judges who share "the core values held by most of our country's citizens." In a word, everything is politics, nothing is law.
The battle between politics and law takes place at many points in the American system of government, but in recent years it has become especially intense over judicial nominations. That is because judges today set national policy far more than they used toand far more than the Constitution contemplates. Because the original constitutional design has been corrupted, especially as it relates to the constraints the Constitution places on politics, we have come to ideological litmus tests for judges. The New Deal Court, following President Roosevelt's notorious Court-packing threat, politicized the Constitution, laying the foundation for several forms of judicial activism. After that it was only a matter of time until the judiciary itself had to be politicized. We are reaping the fruit of that constitutional corruption.
That will not change until we come to grips with the first principles of the matterwith the true foundations of our constitutional system. Yet neither party today seems willing to do that. Democrats have an activist agenda that a politicized Constitution well serves. Republicans have their own agenda and their own reasons for avoiding the basic issues. Thus, it may fall to the nominees themselves to take a stand for law over politics, the better to restore the Constitution and the rule of law it was meant to secure.
Full Text of Policy Analysis No. 446 (PDF, 19 pgs, 224 Kb)
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And the RINO Republican leadership are too great of COWARDS to stand up to the Dimocrats phony filibuster.
The Democrats have not imposed a supermajority requirement. The rules of the Senate have.
Making its own rules is a plenary, unreviewable Article I, section 5 power granted to the Senate.
Either the Senate needs to change its rules or we need to change the Senate.
Then could the Senate change its rules to say that every bill must pass unanimously from now on?
Would that be "unreviewable"?
Except for treaties, constitutional amendments, overriding vetos and convictions on Bills of Impeachment they most certainly could do exactly that.
They would rule it a nonjusticiable question.
Maybe, maybe not. Your guess is as good as mine.
The question is: what are "Senate Rules"? All would agree that they include purely procedural matters (such as how a bill is to be introduced to the floor, etc.) Beyond that, there is room for disagreement as to what constitutes rules.
We cannot say with certainty that this will never be taken up by the court. I for one think it should.